Okun, Oddo & Babat, P.C., New York (Darren Seilback of counsel), for respondent.

Friedman, J.P., Sweeny, Acosta, Renwick, Manzanet-Daniels, JJ.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 4, 2012, which denied defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In construing a statute of another state, we are bound to follow the construction which the courts of that state have given it, particularly where, as here, the highest court of that state has interpreted the statute (McKinney's Cons Laws of NY, Book 1, Statutes § 261).

The New Jersey Workers' Compensation Act provides the exclusive remedy for recovery of damages as a result of an accidental injury which is sustained during the course of employment (see Tomeo v Thomas Whitesell Constr. Co., Inc., 176 N.J. 366, 823 A.2d 769 [2003]), unless there was conduct on the part of the employer that amounts to an "intentional wrong" (NJ Stat Ann § 34:15-8).

The seminal case in defining the term "intentional wrong" is Millison v E.I. DuPont de Nemours & Co. (101 N.J. 161, 501 A.2d 505 [1985]). There, defendant corporation, through some of its corporate officers and medical staff, engaged in purposeful deception and the concealment of health risks involving asbestos exposure. This deception included, inter alia, concealment of diseases already developed in employees, by means of conducting medical exams and fraudulently advising employees that they were disease free. Focusing on the type of employer conduct that would be "so egregious as to constitute an intentional wrong'" and thus take a case out of the exclusivity provisions of the statute (Millison, 101 N.J. at 177, 501 A.2d at 514), the New Jersey Supreme Court undertook an extensive analysis of the statute's purpose and legislative intent. In order to satisfy the intentional wrong standard, two related components are required: (1) there must be a "substantial certainty" that the employer's conduct will cause injury or death; (2) such conduct must be viewed in the context of industry reality, i.e., whether the injury may "fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act" (Millison, 101 NY at 179, 501 A.2d at 514).

The court warned that "the dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality." (Millison, 101 N.J. at 178, 501 A.2d at 514).

Applying the two-prong test to the facts in Millison, the court determined that the count of the complaint seeking damages for plaintiffs' initial work-related occupational diseases must be dismissed as precluded by the Workers' Compensation Act. Although acknowledging that defendants knowing exposure of plaintiffs to asbestos was a deliberate risk to their health, the court held "the mere knowledge and appreciation of a risk - even the strong probability of a risk - will come up short of the substantial certainty' needed to find an intentional wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute." (Millison, 101 N.J. at 179, 501 A.2d at 514-515). However, plaintiffs' cause of action for aggravation of their initial occupational diseases constituted a valid claim, since defendants fraudulently concealed their medical conditions, thus preventing them from obtaining early treatment. The key factor in this regard was the employer's active, intentional and fraudulent misleading of the employees and conduct in concealing from them diseases already developed. This type of conduct is "not one of the risks an employee should have to assume" and is thus beyond that contemplated by the statute (Millison, 101 N.J. at 182, 501 A.2d at 516).

The New Jersey Supreme Court again revisited the question of "intentional wrong" in Laidlow v Hariton Machinery Co. (170 N.J. 602, 790 A.2d 884 [2002]). Laidlow involved a plaintiff-employee whose fingers were partially amputated by a rolling mill machine whose safety guard had been inactivated. The defendant-employer admittedly disabled the safety guard by tying it up with a wire because its use slowed down production. For approximately 13 years, the plaintiff and a number of other employees operated the machine in this condition and had, during that time, experienced several incidents where the rollers caught and ripped off their gloves. They escaped injury because they were fortunately able to extricate their hands from the gloves before being pulled into the machine. Each of these incidents was reported to defendant's supervisors with requests to have the guard activated. In fact, on three separate occasions just prior to the underlying incident, the plaintiff asked his supervisor to restore the guard to no avail.

The guard was, however, activated and placed in the proper position whenever OSHA inspectors came to the plant. On those occasions, the plaintiff's supervisor would instruct employees to release the wire holding up the safety guard, but would again disable the guard after the inspectors left.

The New Jersey Supreme Court, recognizing "the need for a chary interpretation of the intentional wrong exception, " re-affirmed the two-prong test of Millison (Laidlow, 170 N.J. at 617, 790 A.2d at 894). In making its analysis, a reviewing court must take into account all the facts and circumstances of the case (Laidlow, 170 N.J. at 614, 790 A.2d at 892). The court held that "removal of a safety guard can meet the intentional wrong standard" but that "such a determination requires a case-by-case analysis" (Laidlow, 170 N.J. at 619, 790 A.2d at 895-896).

Applying those principles in Laidlow, the court found that an issue of fact existed as to whether the defendant's actions met the intentional wrong exception. While no one fact standing alone is sufficient to support such a determination, the totality of the circumstances there - the defendant's admission the guard was removed to expedite processing of work and increase profits; the number of close calls involving the machine; the repeated requests by employees to reactivate the guards, particularly those in close temporal proximity to the incident in question; and the employer's actions in "systematically deceiv[ing] OSHA into believing that the machine was guarded, inferentially at least, because it knew that operating the machine without the guard inevitably would cause injury and that OSHA would not allow such a dangerous condition to exist" all combine to favor this conclusion. The court noted that the absence of prior accidents over a 13-year period "is simply a fact, like the close-calls, that may be considered in the substantial certainty analysis" (Laidlow, 170 N.J. at 621, 622, 790 A.D.2d at 897). However, it took pains to emphasize that "our holding is not be understood as establishing a per se rule that an employer's conduct equates with an intentional wrong'...whenever that employer removes a guard or similar safety device from equipment or machinery, or commits some other OSHA violation. Rather, our disposition in such a case will be grounded in the totality of the facts contained in the record and the satisfaction of the standards established in Millison and explicated here" (Laidlow, 170 N.J. at 622-623, 790 A.2d at 898).

Defendant's removal of the safety screen from the hot leather stamping machine used by plaintiff was therefore only one factor to consider and is insufficient by itself to demonstrate an ...

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